Texas Drug Use and Pregnancy Laws

Drug Use During Pregnancy Laws in Texas

Women who are pregnant and experiencing substance abuse in Texas are in a difficult situation. They may want to seek treatment, but are afraid of the social stigma and legal ramifications. Understanding the laws, as well as what resources are available, can help pregnant mothers make an informed decision. Here is more information on Texas laws regarding drug use during pregnancy.

Is substance abuse a crime during pregnancy?

No, however Texas pregnancy drug laws, found in Chapter 22, Assaultive Offenses of the Penal Code, may not be as clear cut as other state’s laws. Section 22.041. Abandoning or Endangering a Child, discusses drug use and children. However, Section 22.12. Applicability to Certain Conduct, states that the laws set forth in Chapter 22 do not apply if committed against “an unborn child” and are “committed by the mother of the unborn child.”

Have women been prosecuted for drug abuse during pregnancy?

In recent years, no major news outlets have reported about women who were prosecuted solely for drug abuse during pregnancy in Texas.

In 2017, a woman from Whitesboro, Texas was arrested after giving birth to a baby that tested positive for methamphetamine. She gave birth in Ardmore, Oklahoma, and that state’s laws may have come into play.

Drug use and pregnancy laws in Texas
Drug use and pregnancy laws in Texas

Is substance abuse during pregnancy considered child abuse?

Yes, in Texas, it is considered child abuse if a mother uses drugs during her pregnancy.

Is it grounds for civil commitment for substance abuse during pregnancy?

No. Texas law states that a person can “refuse a medication, therapy, or treatment.” There are two exceptions to this law.

  1. Parents or guardians may commit a minor.
  2. Commitment is possible if the patient is found to be incompetent to handle their own affairs.

Will health care workers have to report substance abuse during pregnancy?

In Texas, doctors are not required to report substance abuse during pregnancy to the police. However, nothing prohibits doctors from doing so. Doctors and other health care professionals may also report to other agencies.

Is a drug test required if drug use has been suspected during pregnancy?

The U.S. Supreme Court has ruled that drug tests can’t be carried out on a pregnant woman without their consent or a warrant, “if the purpose is to alert the police to a potential crime.” This leaves the door open for testing with or without consent for other purposes.

What happens if I fail a drug test while pregnant? Will they take my baby if I test positive at birth?

The Texas Department of Family and Protective Services “only removes children when it is necessary to protect them from abuse or neglect. This happens when there are no reasonable efforts that will keep children safe in their homes.” This stance seems to imply that substance abuse alone may not be reason enough to remove a child from his or her home.

Texas Drug Use During Pregnancy Laws
Texas Drug Use During Pregnancy Laws

Texas has two voluntary programs in place for mothers and their children, including pregnant women, who are experiencing substance use disorders: residential drug treatment facilities and outpatient Pregnant and Parenting Intervention (PPI) services.

What are the Texas newborn drug testing laws?

There are currently no newborn drug testing laws in Texas. The mandatory newborn screening only tests for certain medical conditions and disorders, and not drug use.

Pregnancy and Substance Abuse

Pregnancy and drug addiction is a concern throughout the U.S. The National Institutes of Health (NIH) estimates that 5% of pregnant women use one or more addictive substances. The effects of substance abuse during pregnancy are apparent right at birth. According to the NIH, babies exposed to cocaine while in utero are at risk for premature birth, low birth weight, and a smaller head circumference.  Drug use during pregnancy has long term effects. Later in life, these children who were exposed to cocaine have been shown to have problems paying attention and processing information.

Today, opioid use disorder is of particular concern. According to the Center for Disease Control (CDC), the number of mothers delivering with this disorder more than quadrupled from 1999 to 2014. The babies of mothers who use opioids, both prescription and illicit, are at an increased risk for being stillborn, having low birth weights, premature birth, and feeding and breathing problems. The withdrawal symptoms that babies born addicted to opioids experience are called neonatal abstinence syndrome (NAS).